For tribe, reservoir is all about not being plumb dry

Posted: Sunday, April 22, 2007

By Maria Sudekum Fisher

KICKAPOO NATION RESERVATION — Damon Williams learned about the Kickapoos' plans to build Plum Creek Reservoir, which has existed only on paper since the 1970s, when he was a law clerk for the Environmental Protection Agency.

Six years later, Williams is general counsel for the tribe and spends much of his time trying to get the 1,200-acre reservoir built, primarily to secure a reliable water supply for the northeast Kansas reservation, which has steady problems with water quality and quantity.

The tribe and the Bureau of Indian Affairs paid to have water trucked to the reservation in 2003 because the reservation's aging water plant wasn't able to keep up. Since 2005, the tribe's drinking water has violated federal standards, a problem Williams said could be resolved with the new reservoir.

Plum Creek "is just the way of providing water to a group of people who desperately need it," Williams said.

In June, the Kickapoo joined several other tribes pursuing water claims when they filed a federal lawsuit accusing state and federal officials of blocking the reservoir and ignoring the tribe's needs.

The Indian water cases range from the massive, such as the Arizona Water Settlements Act, which in 2004 gave the Gila River Indian Community rights to about 653,500 acre feet of water a year, to Plum Creek, where a tribe of 1,600 — of whom about 500 live on the 30-square mile reservation — seeks to build a $6.9 million reservoir to supplement the water supply and help with area flood control.

The U.S. Supreme Court has said tribes have an implied right to water necessary to fulfill the purposes for which their reservations were created. Because most reservations were established in the 19th century, the tribes' water rights have priority over water rights established later, including those of many settlers, towns and cities.

And as water resources dwindle, the tribes' cases could have implications for much of the western United States, said Lloyd Burton, professor of law and public policy at the University of Colorado-Denver.

"To a remarkable extent, the entire future of the West depends on how water resources are allocated," Burton said. The "most senior appropriators are the ones who are going to have any water at all, and the tribes are among the most senior water rights holders."

The Kickapoo case alone could impact scores of landowners, farmers and ranchers along the Delaware River who have been drawing water that, at least on paper, may belong to the Kickapoo. However, most tribes that have pursued water rights claims have been tied up in costly litigation for decades. Others, such as the Gila case, which languished for more than 30 years, have ended with settlements.

The Kickapoos' immediate goal with their lawsuit is to get the reservoir built, Williams said. The long-term goal is to formally establish the tribe's water rights dating back to the mid-1800s, when the Kickapoo were moved to Kansas.

"One thing everyone fails to realize, and I made this comment to the state water board, 'You have appropriated water in this area for a long time, yet you have never accounted for, or known, what the tribe's right was,' " Williams said.

The Plum Creek Reservoir began with discussions between the tribe and local officials in the 1970s, which is when the tribe built the plant it now uses to treat its water from the Delaware River. In 1994, talks culminated with an agreement to build the reservoir. Congress authorized that agreement in 1998.

David Pope, chief engineer for the Kansas Division of Water Resources, said while his office has been aware of the Kickapoo water problem, decades of inaction have been at least in part due to the tribe not speaking up.

"I'm not trying to find fault with anyone. But if there is not an interest by the tribe historically to resolve these questions, then it's hard for the state to be expected to unilaterally resolve this," Pope said.

Williams acknowledges some inaction by the tribe, which has the largest farming operation in Brown County but only recently had the money to pursue the case, thanks to its Golden Eagle Casino. But he says racism also plays a part.

"If this project was for the city of Horton, it would be built already," Williams said. "It's a racial issue. I think there is a certain animosity about the tribe having a little more money than they did 20 years ago."

Another issue slowing the reservoir is location. About two-thirds of the project would be on the reservation. The other third would require using off-reservation land.

Linda Lierz has worked against the reservoir, which would take about 160 acres of her and her husband, Rodney's, 260-acre farm.

"I know people think we're bad because we won't give them water, but it's not that we won't give them water. We gave them ideas," Lierz said. "They're choosing not to build smaller dams, and they could have water, but they're choosing not to drill wells.

"Water is life, and they can have water," she said. "But not at my expense."

The Kansas Geological Survey has found, however, that while the reservation holds some groundwater, the water would require "very expensive" treatment processes, said Steve Moore, an attorney with the Native American Rights Fund in Boulder, Colo. Moore said drilling wells off the reservation also would be costly.

The Kickapoo have asked the local watershed board, which has the power of eminent domain, to condemn the off-reservation land needed for the reservoir. But board member Wayne Heiniger said the board wouldn't condemn until landowners received a "fair bid."

The Kickapoo have offered up to two times the value of the land, Williams said. But that isn't enough for a "forced sale," Heiniger said.

"It's not like putting somebody's land up for sale," Heiniger said. "They're being forced to give up something that may be very dear to them."